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Power Grab

Two new books, one by a Boston Globe reporter, the other by the former head of the Justice Department's Office of Legal Counsel, recount the Bush administration's efforts to expand the presidential powers at the expense of the law.

Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy by Charlie Savage (Little, Brown and Company, 400 pages, $25.99)The Terror Presidency: Law and Judgment Inside the Bush Administration by Jack Goldsmith (W.W. Norton, 256 pages, $25.95)

If purity of the heart is to will one thing, as Kierkegaard believed, then Dick Cheney, his chief of staff David Addington, and law professor John Yoo are like the driven snow. These men have worked for years toward a singular goal: expanding the power of the presidency. And they have done so with remarkable success, though the long-term implications may be dangerous to America's constitutional system and role in the world. The strengthening of the executive branch has meant, among other things, that international law regarding interrogations and the treatment of detainees has been set aside and a new set of rules has been put in place. The new policy, with its harsher stance toward terrorism suspects, has alienated our allies in Europe and contributed to the decline of the image of the United States abroad.

In Takeover, Charlie Savage, a Pulitzer Prize-winning reporter for The Boston Globe, provides a journalistic account of the rise of presidential power, examining the various steps by current and past administration officials to consolidate decision making in the executive branch. Though there is nothing particularly new in his book, Savage does a respectable job of pulling together disparate material and showing how the details fit into a larger picture. In The Terror Presidency -- a memoir from one of the key players inside the Bush administration -- Jack Goldsmith, now a professor at Harvard Law School, sheds light on critical internal legal debates regarding detainees that were previously unknown to the public. Though a lesser work in terms of its literary style and narrative structure, Goldsmith's book is more interesting than Savage's because of what it reveals, at times unintentionally, about the inner workings of the administration.

In his carefully researched, not-always-gripping story, Savage tracks the efforts under Bush to develop "policies that systematically loosened the legal force of statutes and treaties that bound a president's hands." Organized thematically, Takeover's chapters deal successively with such subjects as "Secrecy," "Treaties," and the "Supreme Court." Savage also charts a course through the theory of the unitary executive, which relies on a creative interpretation of Alexander Hamilton's Federalist 70 and provides the ideological underpinnings of the "presidentialist" movement, as well as the gritty, roll-up-your-sleeves work of lawyers who plow through hundreds of pages of new legislation, searching for language constraining executive authority so they can draft signing statements to nullify the limits.

The red-hot center of the movement is located in a relatively obscure agency at the Department of Justice, the Office of Legal Counsel, which provides legal advice to the president. In recent years, a group of impeccably credentialed lawyers- -- including Yoo and Patrick Philbin, as well as Goldsmith -- got together with Addington and other officials to discuss counterterrorism issues and administration policy. Though there was friction among them, they all supported stronger executive power.

Shortly after being hired in October 2003, Goldsmith disagreed with Addington's position on the status of some terrorism suspects in Iraq. (Addington said they were not protected by the Geneva Conventions, while Goldsmith said they were.) This dissent "enraged" Addington, writes Savage, but Goldsmith was undeterred. He eventually found fault with a number of legal opinions written before he joined the Office of Legal Counsel, including Yoo's infamous "torture memo" of Aug. 1, 2002, which narrows the definition of torture. Goldsmith believed that this and other legal opinions exceeded the boundaries of the law, and he tried to correct things, working long hours "when he had young children at home."

In Savage's account, Goldsmith comes off as a hero. Yet his resistance was muted, long-delayed (he did not start working on a revision of the "torture memo" until months after he started his job), and ineffective (a new version of the memo was finally issued on Dec. 30, 2004, writes Savage, with a footnote "declaring that everything the CIA and military had been doing under the old memo was still legal"). Moreover, the personal consequences for Goldsmith seem, well, not quite Profiles in Courage material, as he left the Justice Department for tenure at Harvard.

In his own book, Goldsmith tells the inside story, providing a detailed account of the nine and a half months he served as head of the Office of Legal Counsel in 2003 and 2004. It was, he tells us, a scary place. Many of his colleagues were often on edge, perhaps because they had access to a daily "threat matrix," dozens of pages that listed potential terrorist attacks. It was "like being stuck in a room listening to loud Led Zeppelin music," explains Jim Baker, former head of the Office of Intelligence Policy and Review. Terrorist threats were not the only reason it was a tense environment. Officials were also dealing with hostile forces in their backyard -- that is, in the press and "the human rights industry" -- which had gone after Henry Kissinger for war crimes and, in the eyes of Bush administration officials, posed a threat to them.

And this is essentially what the book is about: the efforts of conservative thinkers, including Goldsmith, to examine whether or not aggressive counterterrorism policies fall within the limits of the law during a time of "pressure and uncertainty." One of the biggest crises occurred in April 2004 when the Abu Ghraib photographs were released -- a scandal that Goldsmith himself might have helped to avoid. In November 2003, Goldsmith says, he came across the "torture memo" but for months did not "have the time or the resources to devote to the problem." So he did nothing. Unfortunately, many of the Abu Ghraib photographs were taken after he saw the memo, including one of a Belgian shepherd menacing a detainee and another showing a prisoner naked and bleeding in a hallway. "This is going to kill us," Gonzales "quietly muttered" when he saw the photographs.

The Terror Presidency is an odd book, covering subjects such as torture and "'alternative' interrogation procedures" in a detached manner. Goldsmith has an earnest literary style, sounding at times like a high school senior working on a college application ("This book is about what I learned in my short time as the head of the OLC," he writes, "and what my reflections have taught me"), and his book is nearly emotion-free, despite the highly charged subject matter. His stoicism falters once, briefly, during a visit to a Norfolk brig when he sees a terrorism suspect "crouched in a fetal position" in a corner of a cell and thinks, "This is what habeas corpus is for." He is "embarrassed at the squishy sentiment," though, and shrugs it off. Certain people in the administration are considered "wimps," as Goldsmith says. In the Army, they are told to suck it up and drive on, and this is what he does -- time and again. If he had stopped to think, he might have written a better book.